A driver who failed to keep two young boys playing at the side of the road under proper observation as she approached them was liable for the serious brain injuries sustained by one of the boys who moved into the road and collided with her car. Although she was driving at a reasonable speed and genuinely believed that she was taking reasonable precautions, she had made a series of errors of judgment which cumulatively amounted to negligence.

The claimant brought an action in negligence against the driver of a car involved in a road traffic accident which had resulted in his sustaining severe brain injuries.The defendant had been driving her car down a single carriageway road when the claimant, then aged eight, had moved from the pavement out into the road and collided with the wheel arch of her car. His head struck the lower nearside of the windscreen near the side pillar, causing a serious brain injury. The speed limit at the point of the accident was 40mph. According to the defendant, she had been travelling at between 25mph and 30mph at the time of impact. She said that she had seen two boys at the side of the road and that one of them had suddenly run into the road, while looking back towards the other boy, and collided with the side of her car. The claimant’s friend, who was with him at the time of the accident, said that the claimant was going to get a bottle on the grassy area at the other side of the road when the accident occurred.

HELD:

(1) The relevant standard of care was that of the reasonably careful driver,armed with common sense and experience of the way pedestrians, particularly children, were likely to behave. If a real risk of a danger emerging would have been reasonably apparent to such a driver, then reasonable precautions should have been taken. If the danger was no more than a mere possibility, which would not have occurred to such a driver, then there was no obligation to take extraordinary precautions, Foskett v Mistry [1984] R.T.R. 1 followed. The defendant was not to be judged by the standards of an ideal driver, nor with the benefit of “20/20 hindsight”, Stewart v Glaze [2009] EWHC 704 (QB), (2009) 153(16) S.J.L.B. 28 applied. A motorist driving close to children playing on the pavement owed a duty to ensure that those children were aware of his presence before proceeding past them, O’Connor v Stuttard [2011] EWCA Civ 829 followed (see paras 8-10 of judgment).

(2) From the claimant’s conduct in moving to the centre of the pavement, turning to look at oncoming traffic and looking at something on the other side of the road, the defendant ought to have appreciated that there was a real, significant and increasing risk of his running across the road. She ought to have kept the boys under closer observation than in fact she did, and either to have taken her foot off the accelerator and covered her brakes, or to have sounded her horn. Although she was driving at a reasonable speed and genuinely believed that she was taking reasonable precautions, the defendant had made a series of errors of judgment which cumulatively amounted to negligence (paras 60-61, 64-66, 71-77).

(3) Based on the evidence of accident reconstruction experts, if the defendant had kept the claimant under proper observation and reacted appropriately by covering her brakes, the impact would have taken place at a speed of less than 20mph and the claimant would not have suffered the serious brain injury which he did. Even if the collision might still have occurred at a speed of just over 20mph, the point of impact would have been different and again the serious head injury would have been avoided. In any event, if the defendant had sounded her horn as she approached the claimant he would have become aware of her presence and would not have attempted to cross the road (paras 80-81, 84, 87-88, 91).

(4) An ordinary child of the claimant’s age could reasonably be expected to have sufficient knowledge and experience of crossing roads to know of the importance of checking for oncoming traffic before crossing. However, children of that age were liable to become distracted by things which would not distract an adult in a similar situation. A 20 per cent reduction in damages for contributory negligence was appropriate to reflect the strong likelihood that the claimant would have acted differently had he not been so young (paras 95-98).

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